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Coronavirus and Evictions, Part II

A little over two months ago, I wrote about the impact of the COVID-19 pandemic on evictions. At the time, I wrote that we expected it to be “months” before eviction cases could progress normally. Where do we stand now, as we head into August?

Unfortunately, the only honest answer is that it’s uncertain. On a societal, national scale, we are heading toward public health, constitutional, and housing crises that none of us have seen in our lifetimes. Closer to home, things may be better in California than in many other states, but the legal system is still affected by the pandemic, and eviction cases are no exception. In recent days, there have been some signs of eviction cases (or some aspects of them) getting moving again. For example, the Los Angeles County Sheriff’s department is once again doing lockouts. A Los Angeles landlord who gets a judgment for possession can now - unlike a week ago - have the writ executed and the tenant locked out.

The statewide Judicial Council rules (link goes to PDF) that effectively put evictions on hold are still in place, but there have been news reports in recent days about an upcoming vote by the Judicial Council to end these rules. This was reported about two days ago in The Mercury News and the Orange County Register. At the time of writing, I do not have any further information on when the vote may be, how the Judicial Council may vote, and what political relief if any may be forthcoming. It seems to me the liberal state legislature is likely to pass some further tenant relief and/or eviction restrictions, but that is just speculation for now. Landlords and tenants should follow these developments closely.

Some local governments have enacted more protections for tenants; for example, Los Angeles County put into place extensive protections prohibiting any “endeavor to evict” a tenant whose income was affected by the pandemic. By this rule, the County put into place potentially substantial penalties for landlords who try to evict tenants for nonpayment and do not have a good-faith belief that the tenant is not protected by COVID-19 rental relief measures.

What should landlords and tenants do during this uncertain time? First, they should see a lawyer - please understand that articles like this are no substitute for the personal advice of counsel based on your particular situation and needs. But, we can still identify some actions that are likely to be good practices for rentals affected by the COVID-19 pandemic.

Some things are just good practices for everyone. Landlords and tenants should be aware that eviction cases are effectively stalled and will not progress normally. While this might change soon, there are no guarantees, and it seems likely that, as discussed in the news articles above, the state legislature may enact similar protections putting evictions on hold (making this a distinction without a difference to anyone but legal scholars). Meanwhile, rent is still legally owed; it's just deferred until some future date. Both landlords and tenants will generally benefit from documenting communications with the other party, and any other issues with the rental.

Importantly, everyone should keep in mind that litigation is a time-consuming, slow, expensive process, and is being made even slower and more time-consuming by this pandemic and related closures and restrictions. Moreover, at some point in the future there will be a surge of eviction cases, which will likely create even further delays and expense in litigation, as well as an overall social and economic crisis of housing. One recent news report estimated hundreds of thousands of people would be forced into homelessness by the coming wave of evictions.

On the landlord side, landlords should try to remind tenants that their rent is not waived, but deferred, and that paying what they can is in the tenant’s interest because they will not owe that money in the future. They should try to encourage tenants to pay what they can, and form their own plan together for repayment of missed rent. They can send a letter to the tenant requesting payment and any documentation the tenant has of their income being affected by COVID-19 (many local rules require the tenant to provide documentation and/or make COVID-19 an affirmative defense, putting the burden of proof on the tenant). They should check their local ordinances to make sure their actions comply with law (for example, in some areas it may be unlawful to give a 3-day notice to pay or quit), to evaluate any COVID-19 defenses to nonpayment that the tenant may be asserting, and to determine the time frame the tenant has to pay back rent. (This too appears likely to be affected by political relief.) Finally, if all else fails, they should file an action for unlawful detainer (eviction). Even with eviction cases stalled, landlords should, if possible, hire an attorney and file a lawsuit sooner rather than later, to try to stay ahead of the inevitable wave of evictions. At the same time, they should be aware that tenants who cannot afford the rent may not be worth suing for back rent. (There's a reason attorneys use the term "judgment-proof;" what good is a $20,000 judgment against someone who has $75 in the bank?) And, finally, landlords who care about more than money should bear in mind that this is a very much a social crisis. Let me be clear. You have no obligation to be a charity. But, you may feel better later if you consider the broader impact of these actions and at least assure yourself that you tried not to put your fellow human beings out on the streets during the worst pandemic in a century.

Tenants should, first, be aware that they do not have any legal entitlement to stay in a rental rent free. The rent is still owed, and the landlord can (one day) sue for it. For a working- or middle-class tenant who owes months of back rent, the numbers can pile up. If you can, it’s probably best to stay current on the rent. At the same time, it may be helpful to know that you can't really be evicted right now; you don't have to bend over backwards if your landlord is being flatly unreasonable. For example, some unscrupulous landlords are trying to use this time to get tenants to sign oppressive agreements. One tenant recently saw a “deferred rent proposal” that required the tenant to pay earlier than legally required, and entitled the landlord to attorney’s fees and additional damages if the tenant missed any payments! Obviously, bullying “deals” like that are not in the tenant’s interest. There is no need to sign something oppressive just because the landlord wants it. Every tenant should be aware that the only way a landlord can remove them is by suing for eviction, getting a judgment for possession, and having the sheriff do a lockout.

As the pandemic drags on, we at Cooledge Law hope that we can help make sure that legal issues aren’t among your many stressors. If you have a legal issue, reach out for a consultation today – or get in touch with us using our handy new live chat feature!

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